[Federal Register Volume 78, Number 25 (Wednesday, February 6, 2013)]
[Proposed Rules]
[Pages 8821-8831]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02589]
[[Page 8821]]
Vol. 78
Wednesday,
No. 25
February 6, 2013
Part IV
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 700, 875, 879, et al.
Abandoned Mine Land Reclamation Program; Limited Liability for Noncoal
Reclamation by Certified States and Indian Tribes; Proposed Rule
Federal Register / Vol. 78 , No. 25 / Wednesday, February 6, 2013 /
Proposed Rules
[[Page 8822]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 700, 875, 879, 884, and 885
[Docket ID: OSM-2012-0010]
RIN 1029-AC66
Abandoned Mine Land Reclamation Program; Limited Liability for
Noncoal Reclamation by Certified States and Indian Tribes
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are proposing changes to our abandoned mine land (AML)
reclamation program regulations under title IV of the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act). If finalized,
the changes would allow states and Indian tribes that have certified
correction of all known coal AML problems within their jurisdiction to
receive limited liability protection for certain noncoal reclamation
activities.
DATES: Electronic or written comments: We will accept written comments
on the proposed rule on or before April 8, 2013.
Public hearings: If you wish to testify at a public hearing, you
must submit a request before 4:30 p.m., Eastern Time, on March 8, 2013.
We will hold a public hearing only if there is sufficient interest.
Hearing arrangements, dates and times, if any, will be announced in a
subsequent Federal Register notice. If you require reasonable
accommodation to attend a public hearing, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
ADDRESSES: You may submit comments by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. The
proposed rule has been assigned Docket ID: OSM-2012-0010. Please follow
the online instructions for submitting comments.
Mail/Hand-Delivery/Courier: Office of Surface Mining Reclamation
and Enforcement, Administrative Record, Room 252 SIB, 1951 Constitution
Avenue NW., Washington, DC 20240. Please include the Docket ID: OSM-
2012-0010.
You may submit a request for a public hearing on the proposed rule
to the person and address specified under FOR FURTHER INFORMATION
CONTACT. If you require reasonable accommodation to attend a public
hearing, please contact the person listed under FOR FURTHER INFORMATION
CONTACT.
FOR FURTHER INFORMATION CONTACT: Alfred Whitehouse, Chief, Reclamation
Support Division, 1951 Constitution Ave. NW., Washington, DC 20240;
Telephone: 202-208-2788.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. How does the AML reclamation program operate?
II. What is the limited liability provision of SMCRA?
III. Why are we proposing rule changes related to the limited
liability provision?
IV. How do we propose to revise our rules?
V. How do I submit comments on the proposed rule?
VI. Procedural Matters and Required Determinations
I. How does the AML reclamation program operate?
Congress established the AML reclamation program in title IV of
SMCRA to remedy the extensive environmental damage caused by past coal
mining activities. In general, the program is targeted toward
reclaiming abandoned mine lands and waters adversely impacted by
inadequately reclaimed surface coal mining operations on lands that
were not subject to the reclamation requirements of SMCRA. Health,
safety, and environmental problems associated with abandoned mine lands
include surface and ground water pollution, entrances to open mines,
water-filled pits, unreclaimed or inadequately reclaimed refuse piles
and minesites (including some with dangerous highwalls), sediment-
clogged streams, damage from landslides, and fumes and surface
instability resulting from mine fires and burning coal refuse.
Restoration activities under the abandoned mine reclamation program
correct or mitigate these problems. While the central focus of the AML
program has been to address coal-related health, safety and
environmental problems, noncoal mining-related problems also are
eligible to receive funding under certain conditions.
A core element of the national AML program is the reclamation plan
developed by each qualifying state and tribe. Under section 405(b) of
SMCRA, states (and, after amendment of the Act in 1987, the Navajo,
Hopi, and Crow Indian tribes) that have coal lands and waters eligible
for reclamation under title IV of SMCRA may submit a proposed plan to
OSM for review. If the proposed plan demonstrates that the state or
tribe has qualifying lands and waters along with the necessary
legislative authority and administrative components to adequately
administer the program, we will approve the plan under section 405(d)
of SMCRA. Currently, 25 states and the 3 Indian tribes have approved
AML reclamation plans, which allows them to submit applications for
grant funding under section 405(f) of SMCRA.
During the first 30 years of the program, states and tribes with
approved plans received grants and conducted reclamation activities to
address AML-eligible problems. During this period, the states of
Louisiana, Montana, Texas, and Wyoming and the Crow Tribe, the Hopi
Tribe, and the Navajo Nation completed reclamation of all known coal-
related AML problems within their jurisdiction and certified to that
fact in accordance with section 411(a) of SMCRA. Once certified, these
states and tribes were authorized to expend title IV grant funding on
the reclamation of qualifying noncoal AML problems and on the
construction of public facility projects under the provisions of
paragraphs (b) through (g) of section 411 of SMCRA. In particular,
section 411(b) provides a formal structure for addressing noncoal
problems though identification and prioritization.
In contrast, uncertified states have generally focused on
completing coal-related reclamation projects, although they also have
the option to address noncoal problems in limited circumstances as
provided under section 409 of SMCRA.
In 2006, the Tax Relief and Health Care Act of 2006, Public Law
109-432 (the ``2006 amendments'') substantially modified the AML
reclamation program in title IV of SMCRA. The 2006 amendments altered
AML fee collection rates on the industry, increased program funding,
ended the appropriation process for AML grants to states and tribes,
provided general Treasury revenues as a new source of funding, targeted
funding in uncertified states more directly at addressing high priority
coal-related AML problems, and made a number of procedural changes--
such as requiring OSM approval for revisions to the national inventory
of AML problems. Please refer to the final rule published November 14,
2008 (the ``2008 rule'') \1\ for a more complete description of the
program changes resulting from the 2006 amendments.
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\1\ 73 FR 67576-67647.
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Prior to the 2006 amendments, section 402(g)(1) of SMCRA allocated
50 percent of the total reclamation fees paid by coal mine operations
located
[[Page 8823]]
within each state or tribe to that state or tribe. These allocations
within the AML Fund are referred to as ``State share'' or ``Tribal
share'' funds. However, distribution of the State share and Tribal
share funds was subject to annual appropriation, and the full amount
allocated each year was not always appropriated.
Among other changes, the 2006 amendments barred certified states
and tribes from receiving their State share and Tribal share moneys
from the AML Fund.\2\ Under the 2006 amendments, instead of receiving
moneys from the AML Fund, they receive two new types of funding--prior
balance replacement funds and certified in lieu funds--paid from the
general funds of the United States Treasury and not subject to annual
appropriations. Prior balance replacement funds are authorized by
section 411(h)(1) of SMCRA; they either have been or will be
distributed in seven equal annual installments beginning in fiscal year
2008.\3\ The total of the seven payments equals the difference between
the amount of the State share or Tribal share that was allocated to
each state or tribe and the amount that was actually appropriated
before the 2006 amendments. Certified in lieu funds are authorized by
section 411(h)(2) of SMCRA and are annual payments from the general
funds of the United States Treasury in an amount equal to 50 percent of
the reclamation fees paid by coal mining operations within each
certified state or tribe.\4\
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\2\ 30 U.S.C. 1231(f)(3)(B).
\3\ 30 U.S.C. 1240a(h)(1).
\4\ 30 U.S.C. 1240a(h)(2).
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Our 2008 rule revised our regulations to conform to the 2006
amendments. Of note, in accordance with the 2006 amendments, the 2008
rule gave certified states and tribes greater latitude in how they are
allowed to use the new funding that they receive. In particular, while
certified programs are still required to address known and newly
discovered coal problems in a timely manner, funding not needed to
address coal problems may be used for a wider range of purposes than
previously allowed, including purposes not related to noncoal
reclamation or public facility projects under paragraphs (b) through
(g) of section 411 of SMCRA.
II. What is the limited liability provision of SMCRA?
On November 5, 1990, SMCRA was amended to extend fee collection
authority and to revise both the way the AML Fund moneys are allocated
and the purposes for which AML Fund moneys may be used. Among the many
changes made to title IV at that time, a new section 405(l) was added,
which specifies that no state or Indian tribe shall be liable under
Federal law for any costs or damages as a result of any action or
omitted action while carrying out an approved abandoned mine
reclamation plan. The new paragraph applies to all Federal laws. It
does not preclude liability for gross negligence or intentional
misconduct by a state or Indian tribe. States and tribes value the
protection provided by this provision because state and tribal program
officials routinely make a broad range of decisions concerning site
selection and abatement of serious health, safety, and environmental
problems. The limited liability provision provides them a degree of
protection as they make difficult choices with limited program funding.
On May 31, 1994, we adopted 30 CFR 874.15 and 875.19 to implement
section 405(l) of SMCRA.\5\ The language in the two sections is
identical--30 CFR 874.15 applies to uncertified programs, while 30 CFR
875.19 applies to certified programs.
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\5\ 59 FR 28172.
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III. Why are we proposing rule changes related to the limited liability
provision?
We propose to revise our rules in response to concerns that our
2008 rule may have created a disincentive for certified States and
tribes to conduct noncoal reclamation activities. In the 2008 rule, we
did not change the language of either 30 CFR 874.15 or 875.19. However,
we did conclude that certified programs expending the two new sources
of funding made available by the 2006 amendments under sections
411(h)(1) and (h)(2) of SMCRA (prior balance replacement funding and
certified in lieu funding, respectively) cannot conduct a noncoal
reclamation program under paragraphs (b) through (g) of section 411 of
SMCRA.\6\ As a consequence of this determination, any noncoal
reclamation project would not be subject to the provisions of 30 CFR
part 875, which includes the limited liability provision.
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\6\ 73 FR 67611.
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We received a number of comments on the application of the limited
liability provision to certified programs during our 2008 rulemaking.
The Interstate Mining Compact Commission (IMCC), the National
Association of Abandoned Mine Land Programs (NAAMLP), and one state
commented that ``certified AML programs should not be required to
follow all of Part 875 to enjoy the protection of the limited liability
provisions of Sec. 875.19.'' Since we adopted the 2008 rule, program
officials in certified states and tribes have continued to express
concern over the loss of limited liability protection for noncoal
reclamation projects.\7\ This proposed rule is designed to address
those concerns and restore limited liability protections for noncoal
reclamation and public facility projects conducted pursuant to a SMCRA
noncoal program and paragraphs (b) through (g) of section 411 of SMCRA.
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\7\ See, e.g., Statement of Madeline Roanhorse, Manager, AML
Reclamation/UMTRA Department, Navajo Nation On Behalf of the
National Association of Abandoned Mine Land Programs re Oversight
Hearing on ``The Effect of the President's FY 2013 Budget and
Legislative Proposals for the Office of Surface Mining on Private
Sector Job Creation, Domestic Energy Production, State Programs and
Deficit Reduction'' before the House Energy and Mineral Resources
Subcommittee, March 6, 2012, p. 7 (``Without this limited liability
protection, these states and tribes potentially subject themselves
to liability under the Clean Water Act and CERCLA for their AML
reclamation work. Nothing in the 2006 Amendments suggested that
there was a desire or intent to remove these liability protections,
and without them in place, certified states and tribes will need to
potentially reconsider at least some of their more critical AML
projects.'').
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IV. How do we propose to revise our rules?
We are proposing to revise our regulations to clarify that
certified states and tribes, using prior balance replacement funds and
certified in lieu funds, may voluntarily conduct noncoal reclamation
programs under the provisions of 30 CFR subchapter R and receive
limited liability protection for projects completed under those
provisions. Our proposed revision would retain the ability of certified
states or tribes to expend title IV moneys on projects that are not
part of a SMCRA noncoal reclamation program, but they would not receive
limited liability protection for work on those projects.
SMCRA section 405(l) protects the states or tribes from liability
``under any provision of Federal law for any costs or damages as a
result of action taken or omitted in the course of carrying out a[n
approved] State abandoned mine reclamation plan * * *.'' 30 U.S.C.
1235(l). Under current regulations, certified states and tribes have
very few SMCRA-related administrative duties when they conduct noncoal
reclamation but they also do not receive limited liability protection
for any of their work because that work is not considered to be part of
a noncoal reclamation program conducted in accordance with an approved
State abandoned mine reclamation plan. 30 CFR 875.19; see also 73 FR
67613-67614. To afford
[[Page 8824]]
certified programs the protections of the limited liability provision
at least in connection with some of their work, we propose to allow
them the option of using their title IV moneys on SMCRA noncoal
reclamation programs that will be part of an approved state abandoned
mine reclamation plan; that is, on programs operating under paragraphs
(b) through (g) of section 411 of SMCRA and that follow the
requirements of 30 CFR subchapter R.
Under such a noncoal reclamation program, limited liability
protections would extend not only to site reclamation activities but
also to program administration, site development, environmental
management, and other actions taken and not taken in support of SMCRA
noncoal reclamation activities. Because the protections only extend to
``action taken or omitted in the course of carrying out'' an approved
state or Indian tribe abandoned mine reclamation plan, there must be a
clear nexus between the action or inaction and an approved state or
abandoned mine reclamation plan for the protections to apply.
In the 2008 rule, we concluded that certified programs could not
conduct noncoal reclamation programs under 30 CFR part 875 using prior
balance replacement funds or certified in lieu funds.\8\ The 2008 rule
allowed certified states and tribes to use prior balance replacement
funds for any purpose specified by the state legislature or tribal
council under 30 CFR 872.31 and certified in lieu funds for any purpose
under 30 CFR 872.34. However, we also determined that the 2006
amendments did not authorize certified states and Indian tribes to use
their title IV funding for projects conducted under paragraphs (b)
through (g) of section 411 because those paragraphs specifically refer
to the use of State share and Tribal share funds, which certified
states and tribes no longer receive.
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\8\ 73 FR 67610.
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Although we adopted this approach in the 2008 rule, we recognized
at the time that SMCRA was not clear and we considered possible
alternatives. First, in our proposed rule that preceded the 2008 rule,
we proposed that certified states and tribes could choose to use their
title IV moneys for noncoal reclamation and public facility projects
under 30 CFR part 875.\9\ Second, we presented an alternative that
would have required certified states and tribes to spend their
certified in lieu funds for noncoal reclamation and public facility
projects under part 875.\10\
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\9\ 73 FR 35236, June 20, 2008.
\10\ 73 FR 35228, June 20, 2008.
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We now propose an approach to the use of prior balance replacement
funds and certified in lieu funds that is similar to the one we
proposed in 2008--i.e., that certified states and tribes can choose to
use their title IV moneys for noncoal reclamation and public facility
projects under 30 CFR part 875. We do not believe that we need to amend
the regulatory language in part 872 to effect this change--the current
language is broad enough to allow certified states and tribes to expend
their money on noncoal reclamation and public facility projects under
30 CFR subchapter R if they choose to do so. We invite comment as to
whether we need to make any modifications to part 872, particularly
Sec. Sec. 872.31(a) and 872.34, to ensure that certified states and
tribes receive limited liability protection for projects completed
under a SMCRA noncoal program. Although we are not proposing changes to
part 872, we are proposing revisions to other parts, as described
further below.
A. How do we propose to revise 30 CFR Part 700: General?
1. Section 700.5: Definitions
We propose to revise Sec. 700.5 to add a definition for the term
``SMCRA'' to improve the clarity of existing regulations. The term
``SMCRA'' means the Surface Mining Control and Reclamation Act of 1977
(Pub. L. 95-87).
B. How do we propose to revise 30 CFR Part 875: Certification and
Noncoal Reclamation?
We propose to revise this part to clarify that certified states and
tribes may voluntarily conduct noncoal reclamation programs under the
provisions of 30 CFR subchapter R and receive limited liability
protection for projects completed under those provisions. In general,
our proposed revisions set forth the procedures that certified states
and tribes would be required to follow if they voluntarily choose to
use their title IV funding for a noncoal reclamation project or public
facility project under SMCRA and 30 CFR subchapter R. These procedures
relate to the eligibility of sites and restrictions related to land
acquisition and management, lien determinations, and contractor
eligibility. In addition, this part would make clear that certified
states and Indian tribes would receive limited liability protection
under 30 CFR 875.19 for authorized noncoal reclamation and supporting
administrative and programmatic activities.
1. Section 875.11: Applicability
We propose to revise Sec. 875.11(b)(2) to provide that under part
875 certified programs may use prior balance replacement funds and
certified in lieu funds not only to engage in coal reclamation projects
that are necessary to maintain certification but also to conduct
noncoal reclamation programs.
During our previous rulemaking related to the 2006 amendments, we
proposed similar language under Sec. 875.11(b)(2) that would have
given certified states and Indian tribes the choice to expend prior
balance replacement funds or certified in lieu moneys on noncoal
reclamation programs under SMCRA.\11\ The majority of comments we
received on this proposal were critical because certified states and
tribes would have had to comply with the reclamation priorities for
noncoal programs, which are set out in Sec. 875.15. According to
commenters, this would have placed ``unsupported and illegal
restraints'' on their use of prior balance replacement funds and
certified in lieu funds. The commenters recommended that the proposed
language be revised to ensure that certified states and Indian tribes
did not have to comply with all the provisions of part 875 and to
clarify that certified states and tribe can elect to do noncoal
reclamation outside the framework of that part.
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\11\ 73 FR 35259, June 20, 2008.
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Based on these comments and upon further analysis of our approach,
the final rule implementing the 2006 amendments did not carry forward
the option in proposed Sec. 875.11(b)(2) that would have allowed
certified states and Indian tribes the choice to expend prior balance
replacement funds and certified in lieu funds on noncoal reclamation
programs under SMCRA. Thus, the existing rule only requires certified
states and tribes to follow part 875 when they expend prior balance
replacement funds and certified in lieu funds on coal reclamation
necessary to maintain their certification. In other words, certified
states and tribes are no longer required to follow part 875 if they use
their title IV funding for noncoal reclamation and public facility
projects because we determined that those projects would not be
completed under SMCRA and its regulations.
In this proposed rule, we are reexamining our 2008 decision on this
topic. We are considering giving certified states and tribes the choice
to
[[Page 8825]]
use their title IV moneys under a SMCRA noncoal program under part 875.
We believe this proposed rule would be consistent with section
411(h)(1) of SMCRA, which grants the state legislatures and tribal
councils discretion as to how prior balance replacement funds may be
spent because the state legislature or tribal council could direct
these funds to be expended pursuant to a SMCRA noncoal program. In
addition, we believe that optional coverage would be consistent with
section 411(h)(2) of SMCRA, which contains no specific instruction on
the use of certified in lieu funds and does not place any restrictions
upon them. Therefore, under the proposed rule, certified states and
tribes would be able to direct, if they so choose, some or all of these
funds to be used for a SMCRA noncoal reclamation program consistent
with section 411 of SMCRA and 30 CFR part 875. This approach would also
be consistent with our view that states and tribes may use these funds
for coal reclamation to maintain certification, a use also not
explicitly contained in either paragraph (h)(1) or paragraph (h)(2) of
section 411 of SMCRA.
Finally, by allowing certified states and tribes the latitude to
conduct activities under 30 CFR part 875, we would continue to promote
the AML reclamation plan as a central component of noncoal reclamation.
Under paragraphs (b) through (g) of section 405 of SMCRA, states and
tribes may receive title IV grants only when they have received program
approval based upon a complete reclamation plan. Certified states and
tribes have approved reclamation plans, and they operate under and
maintain these approved plans in order to receive title IV funding.
Reclamation activities carried out pursuant to a SMCRA noncoal program
would enjoy the limited liability protections of section 405(l) of
SMCRA because the work would be conducted pursuant to an approved
reclamation plan that conforms to paragraph (e) and (f) of section 405
of SMCRA.
2. Section 875.16: Exclusion of Certain Noncoal Reclamation Sites
We propose to revise this section to prohibit the reclamation of
sites designated for remedial action under the Uranium Mill Tailings
Radiation Control Act of 1978 (UMTRCA) \12\ or listed for remedial
action under the Comprehensive Environmental Response Compensation and
Liability Act of 1980 (CERCLA) \13\ by certified states or tribes using
prior balance replacement funds or certified in lieu funds if they
conduct the reclamation as a component of a voluntary noncoal
reclamation program under Part 875. SMCRA clearly prohibits ``[s]ites
and areas designated for remedial action pursuant to [UMTRCA] or which
have been listed for remedial action pursuant to [CERCLA]'' from being
``eligible from expenditures from the Fund under'' section 411 of
SMCRA.\14\
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\12\ 42 U.S.C. 7901 et seq.
\13\ 42 U.S.C. 9601 et seq.
\14\ 30 U.S.C. 1240a(d).
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In the 2008 rule, one modification we made to this provision was to
explicitly allow certified states and Indian tribes to expend their
title IV moneys for UMTRCA and CERCLA sites so as to be consistent with
our changes in 30 CFR part 872 that allowed these states and Indian
tribes maximum flexibility to expend their prior balance replacement
funds and certified in lieu funds.
Our proposed revision to 30 CFR 875.16(b) would continue to
prohibit a certified state or Indian tribe from expending money left
over from the pre-2008 distributions of funds from section 402(g)(1) on
UMTRCA and CERCLA sites. The section would be revised to prohibit the
expenditure of prior balance replacement funds and certified in lieu
funds for UMTRCA and CERCLA sites if the state or tribe chooses to
conduct a SMCRA noncoal program. However, our proposed revision would
also retain the ability of a certified state or tribe to expend title
IV moneys on UMTRCA and CERCLA sites if those projects are completed
outside the scope of a SMCRA noncoal reclamation program. In such an
instance, the certified state or tribe would not receive limited
liability coverage under SMCRA.
3. Section 875.17: Land Acquisition Authority--Noncoal
Consistent with our proposal to allow certified programs to
voluntarily use prior balance replacement funds and certified in lieu
funds to conduct a noncoal reclamation program under part 875, we
propose to revise this section to confirm that the requirements
specified in parts 877 (Rights of Entry) and 879 (Acquisition,
Management and Disposition of Lands and Water) also apply to a state's
or tribe's SMCRA noncoal program conducted voluntarily under part 875.
4. Section 875.19: Limited Liability
We propose to revise this section to clarify that no certified
state or Indian tribe conducting noncoal reclamation activities under
the provisions of part 875 is liable under any provision of Federal law
for any costs or damages as a result of action taken or omitted in the
course of carrying out an approved state or Indian tribe abandoned mine
reclamation plan.
In our 2008 rule, we did not revise this section, but we did note
that under the proposed rule, the only scenario in which a certified
state or Indian tribe could avail itself of the limited liability
provision of Sec. 875.19 would be if it decided to maintain a noncoal
reclamation program under section 411 of SMCRA. As previously
discussed, we did not select our proposed approach at that time. Under
the approach we adopted in the 2008 rule, we concluded that because
prior balance replacement funds and certified in lieu funds could not
be used to fund a noncoal reclamation program under SMCRA, section
405(l) of the Act did not support an interpretation that limited
liability protection extends to noncoal reclamation programs that are
not conducted under title IV of SMCRA.
Our current proposal is consistent with the approach we proposed,
but did not adopt, in 2008. It is also consistent with section 405(l)
of SMCRA, as this section would not preclude liability for costs or
damages as a result of gross negligence or intentional misconduct by
the state or Indian tribe that is carrying out a SMCRA noncoal program
in accordance with its approved reclamation plan.
5. Section 875.20: Contractor Eligibility
We propose to revise this section to clarify that certified states
and tribes that voluntarily conduct noncoal reclamation activities
under part 875 must comply with the contractor eligibility
requirements. This section also applies to certified states and tribes
that conduct coal reclamation to maintain certification.
C. How do we propose to revise 30 CFR Part 879: Acquisition,
Management, and Disposition of Lands and Water?
Because this proposed rule modifies part 875 to allow certified
states and tribes to voluntarily conduct noncoal reclamation activities
under SMCRA, we are proposing changes to part 879 so that our
procedures related to acquisition, management, and disposition of land
and water are consistent with this option. In general, with this
proposed rule, certified states and Indian tribes that voluntarily
conduct noncoal reclamation activities under part 875 would be required
to follow the provisions of part 879. To ensure that any moneys
received from
[[Page 8826]]
the disposition of lands and waters are returned to the reclamation
program, we also propose to revise Sec. 879.15 to specify that all
moneys received by a certified state or tribe in the context of the
noncoal reclamation program must be handled in accordance with Sec.
885.19.
1. Section 879.1: Scope
We propose to revise this section to clarify its applicability to
certified states and tribes that choose to conduct noncoal reclamation
activities under part 875.
2. Section 879.11: Land Eligible for Acquisition
We propose to revise Sec. 879.11(a) and 879.11(b) to clarify that
these sections apply to a certified state or Indian tribe that chooses
to conduct noncoal reclamation activities under part 875. In addition,
as we reviewed our regulations to implement this proposed rule, we
determined that existing Sec. 879.11 was not as clear as we intended,
and we propose to restructure Sec. 875.11(a) to confirm that OSM must
execute a written approval and make the findings required by Sec.
875.11(a)(1) and 875.11(a)(2) when we acquire land.
3. Section 879.15: Disposition of Reclaimed Land
We propose to revise Sec. 879.15(h) to specify that moneys
received from disposal of land by certified states and tribes
conducting a SMCRA noncoal reclamation program under part 875 must be
handled as unused funds in accordance with Sec. 885.19.
D. How do we propose to revise 30 CFR part 884: State Reclamation
Plans?
We propose to revise part 884 to specify the contents of a proposed
reclamation plan for certified states and Indian tribes. In our 2008
rule, we revised Sec. 884.13 to reflect the view that the contents of
a reclamation plan for a certified program should be very limited
because certified programs would largely be expending the two new
sources of funding outside of the parameters of the part 875 noncoal
reclamation requirements. Specifically, our 2008 rule established that
a reclamation plan for a certified program was only required to contain
two components; the Governor's designation under Sec. 884.13(a) and a
commitment to address coal problems in accordance with Sec. Sec.
875.13(a)(3) and 875.14(b).
In this proposed rule, we are revisiting our decision in the 2008
rule and proposing to revise Sec. 884.13 to require that, if certified
programs maintain reclamation plans, those plans must contain all of
the components of Sec. 884.13(a) through (f)--instead of just the two
aforementioned components. This change would be consistent with our
position that to acquire the limited liability protections under
section 405(l) of SMCRA, certified states and Indian tribes must
conduct reclamation activities pursuant to an approved reclamation plan
that conforms to paragraphs (e) and (f) of section 405. We believe that
maintenance of a reclamation plan that fully conforms to paragraphs (e)
and (f) of section 405 would ensure that a certified program has all of
the necessary legal, administrative, and procedural components to
conduct coal reclamation under part 874, to conduct noncoal reclamation
under part 875, and to gain the limited liability protections under
section 405(l) of SMCRA.
1. Section 884.13: Content of Proposed State Reclamation Plan
As discussed above, we propose to revise this section to clarify
that the reclamation plan for a certified program must contain all of
the information identified in the section as well as a commitment to
address eligible coal problems found or occurring after certification
as required in Sec. Sec. 875.13(a)(3) and 875.14(b). The revision
would ensure that reclamation plans for certified programs will contain
all of the necessary legal, administrative, and procedural components
to conduct coal reclamation to maintain certification and to conduct
voluntary noncoal reclamation activities under part 875.
E. How do we propose to revise 30 CFR part 885: Grants to Certified
States and Indian Tribes?
We are proposing changes in this part consistent with our proposal
that certified states and tribes may voluntarily use prior balance
replacement funds and certified in lieu funds for noncoal reclamation
under part 875.
To implement our proposal, we would need to revise several
regulations in this part to ensure that certain grants management and
programmatic activities are conducted properly. In particular, we
propose to revise Sec. 885.12 to expand the list of activities
eligible for certified program funding, and we are proposing revisions
to Sec. 885.16 in order to ensure that the appropriate project
authorization and environmental reviews are conducted for voluntary
noncoal reclamation under part 875. Finally, we propose to revise Sec.
885.20 to ensure that we receive the necessary grant information and
project reporting for voluntary noncoal reclamation under part 875.
1. Section 885.12: What can I use grant funds for?
We propose to revise Sec. 885.12(b) to clarify that certified
programs may use prior balance replacement funds and certified in lieu
funds for noncoal reclamation under section 411 of SMCRA and part 875.
2. Section 885.16: After OSM approves my grant, what responsibilities
do I have?
We propose to revise Sec. 885.16(e) to ensure that certified
programs that use prior balance replacement funds and certified in lieu
funds for noncoal reclamation under part 875 receive a written
authorization to proceed with reclamation on individual projects. Our
authorization to proceed denotes that both the certified program and
OSM have taken all actions necessary to ensure compliance with the
National Environmental Policy Act of 1969 (NEPA),\15\ and any other
applicable laws, clearances, permits, or requirements.
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\15\ 42 U.S.C. 4321 et seq.
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To receive an authorization to proceed from us, a certified state
or tribe would be required to follow its approved reclamation plan and
conduct administrative and noncoal site development reclamation
activities within the regulatory structure provided by 30 CFR
subchapter R. Requesting an authorization to proceed from us would be a
voluntary action on the part of the certified state or tribe. If we
issue an authorization to proceed, the certified state or tribe would
qualify for the limited liability protections for that project,
including the administrative and programmatic activities directly
related to that project. Because certified states and Indian tribes
would not be required under this proposed rule to expend their title IV
moneys under a SMCRA noncoal program, it would be possible for a
certified state or Indian tribe to complete noncoal reclamation or
public facility projects outside the parameters of a SMCRA noncoal
reclamation program, including projects at CERCLA or UNTRCA sites as
provided by other laws. If a certified state or tribe conducts noncoal
reclamation activities outside SMCRA, it would not need to request an
authorization to proceed from us, and it would not receive limited
liability protection for that project.
Requests for authorizations to proceed would be required to contain
the information needed for us to complete
[[Page 8827]]
our review requirements and meet applicable deadlines. Any noncoal
reclamation project proposal submitted to us would be required to be
consistent with 30 CFR subchapter R and the approved state reclamation
plan, and it would be required to be submitted well in advance of any
planned construction so as to allow adequate time for review, including
a NEPA review in order to fully consider reasonable alternatives.
Certified states and tribes have many years of experience
developing noncoal projects with moneys from the AML Fund. As with
those projects, submissions for sites to be reclaimed as noncoal
reclamation projects with prior balance replacement funding and
certified in lieu funding would be required to comply with the
requirements of program-related environmental reviews and satisfy AML
grant and administrative components. These review elements would
include, but would not be limited to, information sufficient for the
conduct of assessments under NEPA, the Endangered Species Act, National
Historic Preservation Act, and the Clean Water Act. In addition, we
would review proposals and conduct oversight activities as needed to
ensure that our program requirements related to site eligibility,
grants management, and AML Inventory management are met. Proposals that
receive our approval as noncoal reclamation projects would be required
to be implemented consistent with the scope of work we approve, and we
would be required to review changes in project scope or activities that
would materially alter the environmental consequences of the
reclamation. Generally, noncoal reclamation projects conducted with
prior balance replacement funds or certified in lieu funds would be
required to adhere to the development, review, and approval components
we currently rely on for AML coal sites being addressed to maintain
certification.
3. Section 885.20: What must I report?
We propose to revise Sec. 885.20 to clarify that certified
programs using prior balance replacement funds and certified in lieu
funds for noncoal reclamation under part 875 would be required to
update the AML inventory for each noncoal reclamation project as it is
funded.
V. How do I submit comments on the proposed rule?
General Guidance
We will review and consider all comments submitted to the addresses
listed above (see ADDRESSES) by the close of the comment period (see
DATES). The most helpful comments and the ones most likely to influence
the final rule are those that include citations to and analyses of
SMCRA, its legislative history, its implementing regulations, case law,
other pertinent federal laws or regulations, technical literature, or
other relevant publications and those that involve personal experience.
Your comments should reference a specific portion of the proposed rule
or preamble, be confined to issues pertinent to the proposed rule,
explain the reason for any recommended change or objection, and include
supporting data when appropriate.
Please include the Docket ID ``OSM-2012-0010'' at the beginning of
all written comments. We cannot ensure that comments received after the
close of the comment period (see DATES) or at locations other than
those listed above (see ADDRESSES) will be included in the docket for
this rulemaking or considered in the development of a final rule.
Public Availability of Comments
Before including your address, phone number, or other personal
identifying information in your comment, you should be aware that your
entire comment--including your personal identifying information--may be
made publicly available at any time. While you can ask us in your
comment to withhold your personal identifying information from public
review, we cannot guarantee that we will be able to do so.
Public Hearings
We will hold a public hearing on the proposed rule only if there is
sufficient interest to do so. We will announce the time, date, and
address for any hearings in the Federal Register at least 7 days before
the hearing.
If you wish to testify at a hearing, please contact the person
listed in FOR FURTHER INFORMATION CONTACT, either orally or in writing,
by 4:30 p.m., Eastern Time, on March 8, 2013. If no one expresses an
interest in testifying at a hearing by that date, we will not hold a
hearing. If only a limited number of people express an interest, we
will hold a public meeting or teleconference rather than a hearing. We
will place a summary of the public hearing in the docket for this
rulemaking.
If a public hearing is held, it will continue on the specified date
until all persons scheduled to speak have been heard. If you are in the
audience and have not been scheduled to speak but wish to do so, you
will be allowed to testify after the scheduled speakers. We will end
the hearing after all persons scheduled to speak and persons present in
the audience who wish to speak have been heard. To assist the
transcriber and ensure an accurate record, we request, if possible,
that each person who testifies at a public hearing provide us with a
written copy of his or her testimony.
Public Meeting or Teleconference
We may hold a public meeting, in person or by teleconference, in
place of a public hearing if there is only limited interest in a
hearing. If you wish to meet with us to discuss the proposed rule, you
may request a meeting by contacting the person listed under FOR FURTHER
INFORMATION CONTACT. All meetings will be open to the public, and, if
appropriate, we will post a notice of the meetings. We will include a
written summary of the meeting in the docket for this rulemaking.
VI. Procedural Matters and Required Determinations.
A. Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. OIRA has
determined that this proposed rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
proposed rule in a manner consistent with these requirements.
At the time of this rulemaking, there are a total of seven
certified states and tribes who would be affected by this proposed
change. As previously discussed, the rulemaking would remove a
disincentive for certified states and tribes to undertake noncoal
reclamation. We estimate that, if the proposed rule is adopted,
approximately 30 to 60 additional noncoal reclamation projects would be
covered by SMCRA's limited liability provision each year. We do not
anticipate any additional costs to
[[Page 8828]]
the certified states and tribes because this proposed rule creates a
voluntary opportunity to redirect existing grant funds to noncoal
reclamation under 30 CFR part 875 to obtain the limited liability
protections of Sec. 875.19. By offering the incentive of limited
liability coverage, the rule should result in more noncoal reclamation
projects being undertaken. Increased reclamation would improve the
quality of the human environment and eliminate hazardous conditions
while improving water quality, air quality, wildlife habitat, community
aesthetics, and the visual landscape.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this proposed rule
will not have a significant economic effect on a substantial number of
small entities under the Regulatory Flexibility Act (RFA).\16\ The
proposed revisions would not be expected to have an significant adverse
economic impact on the regulated community, including small entities.
As previously stated that rule would affect the states of Louisiana,
Montana, Texas, and Wyoming and the Crow Tribe, the Hopi Tribe, and the
Navajo Nation.
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\16\ 5 U.S.C. 601 et seq.
---------------------------------------------------------------------------
C. Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act.\17\ For the reasons previously
discussed, the proposed rule would not--
---------------------------------------------------------------------------
\17\ 5 U.S.C. 804(2).
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a. Have an annual effect on the economy of $100 million or more.
b. Cause a major increase in costs or prices for consumers,
individual industries; federal, state, or local government agencies; or
geographic regions.
c. Have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises.
D. Unfunded Mandates
This proposed rule would not impose an unfunded mandate on state,
local, or tribal governments or the private sector of more than $100
million per year. The rule would not have a significant or unique
effect on state, tribal, or local governments or the private sector. A
statement containing the information required by the Unfunded Mandates
Reform Act \18\ is not required.
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\18\ 2 U.S.C. 1534.
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E. Executive Order 12630--Takings
The proposed rule would not have significant takings implications
because it is not a governmental action capable of interference with
constitutionally protected property rights. A takings implication
assessment is not required.
F. Executive Order 13132--Federalism
This proposed rule would not alter or affect the relationship
between states and the Federal Government. Therefore, the proposed rule
would not have significant Federalism implications. Consequently, there
is no need to prepare a Federalism assessment.
G. Executive Order 12988--Civil Justice Reform
The Office of the Solicitor for the Department of the Interior has
determined that this proposed rule would not unduly burden the judicial
system and that it meets the requirements of sections 3(a) and 3(b)(2)
of the Executive Order.
H. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian Tribes
and have determined that the proposed revisions would not have
substantial direct effects on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
Indian Tribe representatives were invited to consult with OSM on our
intention to propose a rule extending section 405(l) limited liability
protections. In response to a request for consultation, we met with
Indian tribe program representatives from the Hopi and Navajo nations
on July 10, 2012, at Kykotsmovi, Arizona. The Crow Tribe did not
request consultation.
During the consultation with the Hopi and the Navajo Nations, the
Tribes stated that they would like the proposed rule to allow a Tribe
with an approved AML program to be able to request limited liability
protection for some projects but to decline it for others. Our proposed
rule reflects this optional approach. As proposed, the rule would allow
a certified State or Indian Tribe to request OSM approval for specific
noncoal and public facility projects that conform to the reclamation
provisions of section 411(b) through (g) of SMCRA and 30 CFR part 875.
The Tribes also indicated that they would prefer that the limited
liability protections apply to all projects, including public facility
projects, and that OSM should be involved in the NEPA process because
OSM understands the projects and can move quickly through the approval
process. Our proposed rule would allow public facility projects to
receive limited liability if the Tribe chooses to conform to the
reclamation provisions of section 411(b) through (g) of SMCRA and 30
CFR part 875 and to receive the protections of section 405(l).
Similarly, the Tribes requested that the limited liability
protection apply to non-coal reclamation projects, as they were
concerned that they could face liability if they chose to remediate
sites, such as abandoned uranium mines. As proposed, our rule would
provide the option for certified States and Tribes to receive limited
liability protection for such project; however, we can make no
predictions on how other federal agencies might approach the provision
when implementing other federal laws.
The Tribes questioned how the proposed rule might affect a Tribe's
AML Reclamation Plan. Unfortunately, we are unable to completely answer
this question at this time because until the rule is finalized, the
effects of any final rule on an approved AML reclamation plan are
speculative. If and when the rule is finalized, OSM together with the
Tribes would need to conduct a detailed review of the existing approved
AML reclamation plans to determine if changes need to be made. Because
noncoal reclamation was routinely conducted by certified States and
Tribes prior to our rulemaking that implemented the 2006 amendments to
SMCRA, it is possible that some or all of the approved AML reclamation
plans may already contain sufficient language to implement the rule
with only minimal changes.
The Tribes also voiced concern about the extent of limited
liability protection provided to public facility projects. The limited
liability provision extends protections to public facility projects if
they are conducted under section 411(b) through (g) of SMCRA and 30 CFR
part 875. The limited liability provision specifies that no State or
Indian tribe shall be liable under Federal law for any costs or damages
as a result of any action taken or omitted while carrying out an
approved abandoned mine reclamation plan. The provision does not
preclude liability for gross negligence or intentional misconduct by a
state or Indian tribe.
In addition, the Tribes commented on the relationship between
SMCRA's limited liability provision and the Department of the
Interior's trust responsibilities. More specifically, the
[[Page 8829]]
Tribes asked if OSM provides funding to a Tribe, does OSM assume
liability? We believe that the limited liability provision of SMCRA and
the Department's trust responsibilities are two essentially unrelated
matters. The Department's trust responsibilities are a special Federal
responsibility, involving the legal responsibilities and obligations of
the United States towards Indian tribes and the application of
fiduciary standards of due care with respect to Indian lands, tribal
trust resources, and the exercise of tribal rights. In contrast, SMCRA
section 405(l) relates to the potential liability of a State or Indian
tribe under federal law for costs or damages when carrying out an
approved reclamation plan. Indian tribe grant recipients provide
commitments to OSM that expenditures of AML funding will comply with
federal laws (as well as State, Tribe, and local laws). By providing
funding, OSM assumes no liabilities for actions taken by the Tribe or
Tribe officials. As proposed, this rule does not affect the
Department's trust responsibilities.
I. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed rule is not considered a significant energy action
under Executive Order 13211 because it is not classified as a
significant rule under Executive Order 12866 and because the proposed
revisions would not have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, a statement of energy
effects is not required.
J. Paperwork Reduction Act
This proposed rule contains no new information collection
requirements that are not already covered by the Office of Management
and Budget (OMB) control numbers: 1029-0059 for 30 CFR Parts 735, 885
and 886 and OSM's grant forms OSM-47, OSM-49 and OSM-51; and 1029-0087
for the OSM-76--Problem Area Description Form used for OSM's Abandoned
Mined Land Inventory System (AMLIS). We anticipate that there will not
be an increase in the number of respondents who prepare OSM's grant
forms, nor an increase in burden per respondent based on this proposed
rulemaking.
K. National Environmental Policy Act
We have determined that the revisions in this proposed rule are
categorically excluded from preparation of an environmental assessment
or environmental impact statement under the National Environmental
Policy Act,\19\ as provided in 43 CFR 46.205(b). The specific
categorical exclusion that applies is the exclusion in 43 CFR 46.210(i)
for policies, directives, regulations, and guidelines that are of an
administrative, financial, legal, technical, or procedural nature. In
this case, extension of the limited liability provision of section
405(l) to noncoal reclamation conducted by certified states is a legal
matter. In addition, none of the extraordinary circumstances listed in
43 CFR 46.215 applies.
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\19\ 42 U.S.C. 4332(2)(c).
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L. Information Quality Act
In developing this proposed rule, we did not conduct or use a
study, experiment, or survey requiring peer review under the
Information Quality Act (Pub. L. 106-554, section 15).
M. Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this proposed rule easier to understand, including answers to questions
such as the following:
(1) Are the requirements in the proposed rule clearly stated?
(2) Does the proposed rule contain technical language or jargon
that interferes with its clarity?
(3) Does the format of the proposed rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity?
(4) Would the rule be easier to understand if it were divided into
more but shorter sections (a ``section'' appears in bold type and is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
``Sec. 700.5 Definitions.'')?
(5) Is the description of the proposed rule in the SUPPLEMENTARY
INFORMATION part of this preamble helpful in understanding the proposed
rule?
(6) What else could we do to make the proposed rule easier to
understand?
Send a copy of any comments that concern how we could make this
proposed rule easier to understand to: Office of Information and
Regulatory Affairs, Department of the Interior, Room 7229, 1849 C
Street NW., Washington, DC 20240. You also may email the comments to
this address: Exsec@ios.doi.gov.
List of Subjects
30 CFR Part 700
Administrative practice and procedure, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
30 CFR Part 875
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 879
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 884
Grant programs-natural resources, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
30 CFR Part 885
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
Dated: January 27, 2013.
Tommy P. Beaudreau,
Principal Deputy Assistant Secretary--Land and Minerals Management.
For the reasons set forth in the preamble, the Department proposes
to amend 30 CFR parts 700, 875, 879, 884, and 885 as set forth below.
PART 700--GENERAL
0
1. The authority citation for part 700 is revised to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Amend Sec. 700.5 by adding a definition for the term ``SMCRA'' in
alphabetical order to read as follows:
Sec. 700.5 Definitions.
* * * * *
SMCRA means the Surface Mining Control and Reclamation Act of 1977
(Pub. L. 95-87), as amended.
* * * * *
PART 875--CERTIFICATION AND NONCOAL RECLAMATION
0
3. The authority citation for part 875 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
4. In Sec. 875.11, revise paragraph (b) to read as follows:
Sec. 875.11 Applicability.
* * * * *
(b) If you are a State or Indian tribe that has certified under
section 411(a) of the Act--
(1) You must use State share or Tribal share funds distributed to
you under section 402(g)(1) of the Act before
[[Page 8830]]
October 1, 2007, in accordance with this part; and
(2) You may use prior balance replacement funds distributed to you
under section 411(h)(1) of the Act, certified in lieu funds distributed
to you under section 411(h)(2) of the Act, or both to--
(i) Maintain certification as required by Sec. Sec. 875.13 and
875.14 of this part; or
(ii) Conduct a noncoal reclamation program in accordance with the
requirements of this part.
0
5. In Sec. 875.16, revise paragraph (b) to read as follows:
Sec. 875.16 Exclusion of certain noncoal reclamation sites.
* * * * *
(b) You, the certified state or Indian tribe, may not reclaim sites
and areas designated for remedial action under the Uranium Mill
Tailings Radiation Control Act of 1978 (42 U.S.C. 7901 et seq.) or that
have been listed for remedial action under the Comprehensive
Environmental Response Compensation and Liability Act of 1980 (42
U.S.C. 9601 et seq.) using--
(1) Moneys distributed from the Fund under section 402(g)(1) of the
Act.
(2) Prior balance replacement funds distributed to you under
section 411(h)(1) of the Act where you are conducting reclamation under
the provisions of this part.
(3) Certified in lieu funds distributed to you under section
411(h)(2) of the Act where you are conducting reclamation under the
provisions of this part.
0
6. Revise Sec. 875.17 to read as follows:
Sec. 875.17 Land acquisition authority--noncoal.
The requirements of parts 877 (Rights of Entry) and 879
(Acquisition, Management and Disposition of Lands and Water) of this
chapter apply to a state's or Indian tribe's noncoal reclamation
program conducted under this part except that, for purposes of this
section, the term ``noncoal'' replaces all references to ``coal'' in
parts 877 and 879 of this chapter.
0
7. Revise Sec. 875.19 to read as follows:
Sec. 875.19 Limited liability.
No certified State or Indian tribe conducting noncoal reclamation
activities under the provisions of this part is liable under any
provision of Federal law for any costs or damages as a result of action
taken or omitted in the course of carrying out an approved State or
Indian tribe abandoned mine reclamation plan. This section does not
preclude liability for costs or damages as a result of gross negligence
or intentional misconduct by the State or Indian tribe. For purposes of
the preceding sentence, reckless, willful, or wanton misconduct will
constitute gross negligence or intentional misconduct.
0
8. Revise Sec. 875.20 to read as follows:
Sec. 875.20 Contractor eligibility.
Every successful bidder for any contract by an uncertified State or
Indian tribe under this part, or for any contract by a certified State
or Indian tribe to undertake noncoal reclamation under this part, must
be eligible under Sec. Sec. 773.12, 773.13, and 773.14 of this chapter
at the time of contract award to receive a permit or be provisionally
issued a permit to conduct surface coal mining operations. This section
does not apply to any contract by a certified State or Indian tribe
that is not for coal reclamation or that is not for noncoal reclamation
under this part.
PART 879--ACQUISITION, MANAGEMENT, AND DISPOSITION OF LANDS AND
WATERS
0
9. The authority citation for part 879 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
10. Revise Sec. 879.1 to read as follows:
Sec. 879.1 Scope.
This part establishes procedures for acquisition of eligible land
and water resources for emergency abatement activities and reclamation
purposes by you, a State or Indian tribe with an approved reclamation
program that has not certified completion of coal reclamation or a
certified State or tribe conducting noncoal reclamation activities
under part 875 of this chapter, or by us. It also provides for the
management and disposition of lands acquired by the State, the Indian
tribe, or us.
0
11. In Sec. 879.11, revise paragraphs (a) and (b) to read as follows:
Sec. 879.11 Land eligible for acquisition.
(a)(1) We may acquire land adversely affected by past coal mining
practices with moneys from the Fund.
(2) You, an uncertified State or Indian tribe or a certified State
or Indian tribe conducting noncoal reclamation under part 875 of this
chapter, may acquire land adversely affected by past coal mining
practices with moneys from the Fund or with prior balance replacement
funds and certified in lieu funds provided under Sec. Sec. 872.29 and
872.32 of this chapter, provided that we first approve the acquisition
in writing.
(3) Before acquiring land under paragraph (a)(1) of this section or
approving land acquisition under paragraph (a)(2) of this section, we
must make a finding that the land acquisition is necessary for
successful reclamation and that--
(i) The acquired land will serve recreation, historic,
conservation, and reclamation purposes or provide open space benefits
after restoration, reclamation, abatement, control, or prevention of
the adverse effects of past coal mining practices; and
(ii) Permanent facilities will be constructed on the land for the
restoration, reclamation, abatement, control, or prevention of the
adverse effects of past coal mining practices. For the purposes of this
paragraph, ``permanent facility'' means any structure that is built,
installed, or established to serve a particular purpose or any
manipulation or modification of the site that is designed to remain
after the reclamation activity is completed, such as a relocated stream
channel or diversion ditch.
(b) You, an uncertified State or Indian tribe or a certified State
or Indian tribe conducting noncoal reclamation under part 875 of this
chapter, if approved in advance by us, may acquire coal refuse disposal
sites, including the coal refuse, with moneys from the Fund and with
prior balance replacement funds and certified in lieu funds provided
under Sec. Sec. 872.29 and 872.32 of this chapter. We, OSM, also may
use moneys from the Fund to acquire coal refuse disposal sites,
including the coal refuse.
(1) Before the approval of the acquisition, the reclamation program
seeking to acquire the site will make a finding in writing that the
acquisition is necessary for successful reclamation and will serve the
purposes of the reclamation program.
(2) Where an emergency situation exists and a written finding as
set forth in Sec. 877.14 of this chapter has been made, we may acquire
lands where public ownership is necessary and will prevent recurrence
of the adverse effects of past coal mining practices.
* * * * *
12. In Sec. 879.15, revise paragraph (h) to read as follows:
Sec. 879.15 Disposition of reclaimed land.
* * * * *
(h) You must return all moneys received from disposal of land under
this part to us. We will handle all moneys received under this
paragraph as unused funds in accordance with Sec. Sec. 885.19 and
886.20 of this chapter.
PART 884--STATE RECLAMATION PLANS
0
13. The authority citation for part 884 continues to read as follows:
[[Page 8831]]
Authority: 30 U.S.C. 1201 et seq.
0
14. In Sec. 884.13, revise the introductory text to read as follows:
Sec. 884.13 Content of proposed State reclamation plan.
You must submit each proposed State reclamation plan to the
Director in writing. A proposed plan must include the information set
forth in all of the following paragraphs of this section. In addition,
a proposed plan for a certified State or Indian tribe must also include
a commitment to address eligible coal problems found or occurring after
certification as required in Sec. Sec. 875.13(a)(3) and 875.14(b) of
this chapter.
* * * * *
PART 885--GRANTS FOR CERTIFIED STATES AND INDIAN TRIBES
0
15. The authority citation for part 879 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
16. In Sec. 885.12, revise paragraph (b) to read as follows:
Sec. 885.12 What can I use grant funds for?
* * * * *
(b) You may use grant funds as established for each type of funds
you receive. You may use prior balance replacement funds as provided
under Sec. 872.31 of this chapter. You may use certified in lieu funds
as provided under Sec. 872.34 of this chapter. You may use the
following moneys for noncoal reclamation under section 411 of the Act
and part 875 of this chapter:
(1) Moneys that may be available to you from the Fund.
(2) Prior balance replacement funds made available under Sec.
872.31 of this chapter.
(3) Certified in lieu funds as provided under Sec. 872.34 of this
chapter.
* * * * *
0
17. In Sec. 885.16, revise the section heading and paragraph (e) to
read as follows:
Sec. 885.16 After OSM approves my grant, what responsibilities do I
have?
* * * * *
(e) If you conduct a coal reclamation project under part 874 of
this chapter or noncoal reclamation under part 875 of this chapter, you
must not expend any construction funds until you receive a written
authorization to proceed with reclamation on an individual project. Our
authorization to proceed ensures that both you and we have taken all
actions necessary to ensure compliance with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and any other applicable
laws, clearances, permits, or requirements.
* * * * *
0
18. In Sec. 885.20, revise paragraph (c) to read as follows:
Sec. 885.20 What must I report?
* * * * *
(c) You must use the AML inventory to maintain a current list of
AML problems and to report annual reclamation accomplishments with
grant funds.
(1) If you conduct coal reclamation projects or noncoal reclamation
projects under part 875 of this chapter, you must update the AML
inventory for each reclamation project as you fund it.
(2) You must update the AML inventory for each reclamation project
you complete as you complete it.
(3) We must approve any amendments to the AML inventory after
December 20, 2006. We define ``amendment'' as any coal problems added
to the AML inventory in a new or existing problem area.
[FR Doc. 2013-02589 Filed 2-5-13; 8:45 am]
BILLING CODE 4310-05-P